Commonwealth Responsibility for "Forced Adoption"

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Senate Inquiry Petition

SIR GARFIELD BARWICK : AK, GCMG, QC (22 June 1903 – 13 July 1997) was the Attorney-General of Australia (1958–64), Minister for External Affairs (1961–64) and the seventh and longest serving Chief Justice of Australia (1964–81). He was appointed a judge of the International Court of Justice (1973–74)[1]


Sir Garfield Barwick is also the man whose words will go down in history for having implicated the Commonwealth Government in the removalist policy colloquially known as 'forced adoption'.
Regarding the same, the Community Affair's References Committee's Final Report 'Commonwealth Contribution to Former Forced Adoption Policies and Practices' stated:
Firstly, (the Commonwealth) cannot absolve itself of all responsibility for the system under which adoption took place. In Chapter 7, an exchange involving the Commonwealth Attorney General was quoted. This exchange encapsulated his own view but implicitly also the choice, made by the Commonwealth, not to make readily available to unmarried women those Commonwealth social security benefits extended to other mothers (Para. 9: 53):

HON C. ROWE [New South Wales]: I think all this is tied up with not getting the mother's consent too soon and allowing her time to really make up her mind about what she wants to do. SIR GARFIELD BARWICK [Commonwealth]: If you leave the child with the young mother too long, it builds itself into the affections of a person who has no chance of looking after it. HON. C. ROWE: That mother has prior right morally and legally, and I think we should leave it that way. SIR GARFIELD BARWICK: Everything but the economic ability to look after it. HON C. ROWE: But I think we must recognise the rights of the natural mother in these matters. HON. H.W. NOBLE [Queensland]: I think the interests of the child are the first thing to be considered... HON C. ROWE: I would agree on general principles that the interests of the child should be important, but I hate taking away a mother's rights completely too quickly. HON. F.H. HAWKINS: But you do not take them away. She gives them away. It is a question of whether you let her take them back. THE CHAIRMAN [Victoria's Attorney-General Hon. A.G. Rylah]: That is so. She gives them away at a time when, I think it is fair to say, many mothers are not quite capable of bringing sound judgment to bear on the matter (Para. 7:55).

Significantly, the Final Report of the 2012 Inquiry confirmed that the primary objective of 20th century adoption legislation was to legalize child abandonment:

In Australia, adoption law is entirely the product of legislation: the common law did not allow parents to voluntarily relinquish guardianship and custody rights during their lifetimes.  Accordingly, there are Acts, Regulations, policies and practices for each Australian jurisdiction.

In 1925, a South Australian newspaper article reported ‘proposals of the Government in the way of legislation concerning the adoption of children’, noting that: 

under the English law there was no power which prevented a parent from having the control and custody of a child. In many countries Parliament hesitated to take away that natural power, even although the parent was agreeable to the transaction. The object of the Bill was to give to persons who adopted children a legal status as regarded such children... Under the common law the rights of the parent to the custody of the child continued undiminished, notwithstanding that he might have entered into the most solemn agreement to waive all his rights to such custody ("ADOPTION OF CHILDREN," 1925).

The article above also details a discussion of a pre-emptive nature concerning objections to adoption legislation on the grounds of its legal severance of the common law rights and responsibilities of parents:

on the ground that an order of adoption finally put an end to all the rights of the natural parent to the adopted child, and poor persons might, conceivably, be compelled by straitened circumstances to give up children, whom they would, but for poverty, be willing to keep. The answer to that objection was that there was little likelihood that poor persons would avail themselves of the provisions of the measure in order to obtain proper maintenance for their children. There was no need for such persons to do so, since under the State Children's Act or the Destitute Persons Act, according to the circumstances of the case, there was adequate provision for ensuring the proper maintenance of any child whose parents could not afford to keep it, and at the same time ensuring to the parent the right to take over the maintenance of the child if at any time he or she became in a position to support it. Orders of adoption were only made with the consent of the parents and after full enquiry, and no doubt the officiating Magistrate would advise any parent who merely wanted to part with a child to secure its proper maintenance that there was no need to take the extreme step of having the child adopted for that purpose ("ADOPTION OF CHILDREN," 1925).


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